Guarding Our Elders
by: Alaska Legal Services Corporation
As our parents, grandparents, and other relatives grow older, they often need more and more care and assistance. Often, the elder members of our families need help with their physical needs, medical care, and financial affairs. This responsibility falls upon the younger generation. Luckily, there are resources available to these caretakers.
When aging results in a decline in mental capacity, family members often are forced to make decisions for their elder relatives. To facilitate the exercise of responsibility for decision-making, the family caregiver can apply for a guardianship through the local Court. Upon application to the Court, a hearing is set to determine whether the elder is no longer capable to make decisions for himself. If the Court finds that a guardianship is appropriate, the family caregiver is designated the "guardian" and given authority to make decisions for the elder. This position carries the highest duty of care, and requires the guardian to exercise a great deal of responsibility. In making decisions and managing property for the elder, the guardian must always act in the best interests of the elder, and not in his or her own interests. A guardianship is only appropriate when the elder is no longer competent to make their own decisions about physical, medical, and financial issues.
Many elders do not suffer such a severe decline in mental clarity, and remain able to make decisions about day-to-day issues involving their physical and medical needs. However, it may still be appropriate for the family caregiver to have authority to manage the elder's finances. A conservatorship is an option in these situations. Conservators are appointed through court proceedings, just as guardians are. The difference between the two is that a conservator is only empowered to make financial decisions, leaving decisions as to medical care and day-to-day issues with the elder. Conservators are under the same high duty of care as guardians.
In cases where the elder family member is still able to make all his decisions, and does not meet the criteria for either a guardianship or conservatorship, there are other ways for the elder to authorize a family caregiver to undertake certain decision-making responsibilities. A power of attorney provided by the elder gives the family caregiver the right to make whatever decisions the elder chooses. Powers of attorney can be general, allowing for decision-making on a wide range of issues, or can be limited to only financial or medical decisions. Unlike guardianships and conservatorships, which are created by the Court, powers of attorney are created by the elder himself and can be revoked at any time. As with guardians and conservators, those acting under a power of attorney must always act with the highest standard of care, and never in a way contrary to the interests of the elder.
There are resources available to family caregivers who assume decision-making responsibility for elder family members. The Alaska Commission on Aging provides information on issues involving elders (www.alaskaaging.org, (907) 465-3250). The Office of Public Advocacy is also a source of information ((907) 269-3500). AARP also provides valuable information for family caregivers (www.aarp.org).
For more information about guardianships, conservatorships, or powers of attorney, contact your nearest Alaska Legal Services Corporation office.
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